Software Patents from Another Angle

Earlier this week, I talked to Bradley Kuhn, community liason for the Software Freedom Law Center, about the organization's stance on software patents. Among other things, he indicated that the patent system is rough on individual developers and small startups -- whether they are developing open source software or proprietary software -- because they have no real way of knowing whether they might be liable under the patent system until they've been sued for infringement.

Greenberg Traurig co-managing shareholder and IP attorney Heather Meeker thinks that argument is missing something. She told me those who raise that point need to be asked a follow-up question: "So do you think there should be no patent system at all?" Because the same thing is true of all inventors, not just software developers. She explains:

If I invent a great wonder drug and you have a patent on it, you can sue me and stop me from selling it, even if you're not selling it. That's a quality of the patent system generally... .And saying you don't want any patent system at all is pretty radical.

However, if you ask why the patent system is bad for software as opposed to other things, she agrees you may have a point. As Kuhn also noted, software is subject to both copyright protection and patent protection at the same time. And it makes no sense to apply both schemes at once -- especially when they work so differently. Copyright covers expression. Patents cover functionality. Patents are used to exclude people from doing things. Copyright is more enabling.

So which scheme should apply? That's where Kuhn and Meeker have different answers. The SFLC is already on record that patents shouldn't apply to software period. Meeker says patents make more sense for software than copyrights. She explains:

[Software] is more like a device than it is a movie. The problem, conceptually, with covering software under copyrights and not patents is that copyright protects expression and not functionality. But what's valuable about software is functionality.

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Kuhn (if accurately cited) was in error about how software patents came to be in the other post (they are not all claimed as business methods). Meeker is hopelessly wrong on the economics and practical realities of the patent system and the nature of software.

No reason is given for the assertion that it makes no sense to apply copyright and patents at the same time. No justification is given for the assertion that functionality is all that's valuable about software. Even if true (they're not), neither constitute arguments for or against patent eligibility of software anyway.

More importantly; not only is the nature of inventions in the pharmaceutical field drastically different than it is in software, the natures of the two as industries or fields of endeavour with regard to how patent issues affect them are drastically different.

As I suggested earlier, if you want to know whether it is a good idea or not to patent software (or anything else), asking the opinions of Patent Attorneys, technologists or business people is (rather obviously) not really the best way to go about it.